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Now We Know Why Carter Page Has Never Been Charged with Anything
Powerline has been running a series called What We Have Learned So Far, in which developments in the Russia collusion story are updated as new reporting or pronouncements are made. The latest update nails down the knowing falsity in the FISA application: The people who asked the FISA court for surveillance authorization on Carter Page knew (and did not disclose to the court) the source of the allegations and the likelihood that they were politically driven fabrications. They also knew if they revealed this to the court no authorization would be forthcoming and the investigation would be deprived of a key opportunity to develop adverse information on Trump.
While certainly violations of DOJ guidelines and potential crimes were committed by one or more of the people involved in the investigation, does this mean that the FBI was corrupt, and the loss of public confidence is justified? For purposes of my comment let me define how I use the term “corrupt”: Corrupt means the unjustified use of government power for personal benefit (financial or ideological) that was knowingly and intentionally in conflict with the public trust. This is a pretty high bar. It allows for bad things to happen simply because someone was deluded or mistaken and bent rules in an honest (if crazed) belief that an individual was a danger to the public in some fashion. This doesn’t mean that the person is excused and cannot be held accountable, but it does go to the question of whether to lose confidence in an institution when persons within that institution do bad things.
Scott Adams, I think, has a good take on this: If the likelihood that something is true is extremely remote but the consequences of it actually being true are extremely dire, is it not reasonable to investigate? He used that question to posit that the FBI was not acting corruptly to open an investigation on Trump even knowing that the allegations that he was a foreign agent were likely untrue. The problem, of course, is that this rationale could have easily been used to open up an investigation on Obama given his practice of empowering our adversaries and weakening our alliances. Nevertheless, this does blunt the belief that the investigation could not have been opened or participated in in the absence of corrupt motives.
So the FISA application was sought to conduct an improbable foreign intelligence surveillance of Trump with Carter Page being the entry point. And the officials authorizing the application and swearing to its truthfulness knew its weakness and that no criminal proceeding could ever go forward against Page due to this defect. Was that, in and of itself, corrupt? My response is “no.” Was it a violation of Page’s civil rights? Yes, and he should be compensated for that and the government should make clear what was going on.
So, what, was going on? A counterintelligence investigation of Trump. Because as improbable as it seemed (and should have seemed) it would be important to find out if he was a foreign agent. (For reasons stated above it was just as important to find out if Obama was a foreign agent … but never mind.) And the government knew they could never prosecute a criminal case against Page or Trump? Absolutely. So why do it?
To answer that question let me remind you of the case of Wen Ho Lee. Dr. Lee was a researcher at the Los Alamos National Laboratory who was accused of passing classified information relating to nuclear weapons to the Chinese government. Dr. Lee was an American citizen born in Taiwan and of Chinese ethnicity. He came under suspicion but the Clinton Administration would not authorize a surreptitious entry on to his premises to confirm or refute espionage because it would compromise a potential criminal action against him. By the time the government laid a sufficient predicate to arrest and do a search, the incriminating documents could not be found. Some months later the government case collapsed and a federal judge apologized to Dr. Lee for the government’s behavior. Was Dr. Lee a spy? There is no way to know. He says not. But the Chinese did obtain critical information about how to place multiple re-entry vehicles (multiple individual nuclear weapons) on a single rocket. This single technology was an exponential increase in Chinese nuclear capability.
In the counterintelligence world, knowledge trumps consequence. That is, it is more important to know what happened than to punish the perpetrator. Since the nation is the victim and not individual citizens, the objective is to develop new counter strategies when it becomes known that another nation(s) has learned of and can exploit a vulnerability or technology. That is far more important than bringing justice against a spy. And there are times when you don’t want a foreign country to know that you know what they now know.
So let’s return to Citizen Trump. Let’s say that the FBI/DOJ had non-corrupt purposes in investigating him. The FISA surveillance would be one, but only one, technique. The government officials knew that it was flawed and would negate any opportunity to charge Page or Trump criminally. Now there are two possibilities: (1) if Trump’s malfeasance was verified the FBI/DOJ would develop strategies to blunt Russia-Trump conspiring, and/or (2) the FBI/DOJ would implement strategies to undermine Trump’s ability to control the government whether or not it was verified — the “soft coup”. Whoever was pursuing (2) for partisan reasons was clearly corrupt. Anyone sincerely deluded about the risk to the country might also participate in (2) but not necessarily be corrupt. Many FBI/DOJ personnel could be involved in the support of (1) taking it only so far as the relevant evidence justified.
If this is the case that I have posited, then it is extremely important that it be sorted out as to who was just doing their job in chasing down an improbable but consequential claim, who was so deluded to justify knowingly lying to the FISA court, and who was acting corruptly. And even if that happens it is also important to sort out how a subordinate executive agency investigates the President? That is the role of Congress and not anyone in the executive branch.
But it is a conundrum. Let’s assume that under the Bush Administration FBI/DOJ developed adverse information about Obama. Obama gets elected, so now the FBI/DOJ role is terminated. The Democrats who control Congress (and the media) have no interest in pursuing an investigation, and the Republicans although in receipt of the FBI/DOJ data have no power to do so. So a foreign agent is allowed to remain in place without limit on governance. This was ostensibly where we were with Trump, except that Trump did not have the uniform support of his party and the Democrat media was anxious to undermine Trump. That put a “soft coup” in play — and that is the rationale for a belief in an unconstitutional “Deep State.”
Published in General
It was an unsubstantiated claim; therefore both immoral and illegal to pursue through lies.
If the gravity of an accusation alone could justify investigations without due process, witch hunts would abound.
@aaronmiller, I am not justifying the “soft coup”. If there were a highly confidential investigation initiated and then concluded without action when it was established there was no “there there”, then I would not fault officials for at least checking it out. But the manner in which it was conducted and the link to various political operatives who with or without coordination of federal employees ensured that unfounded allegations were publicized, was clearly corrupt. How corrupted the institutions of FBI/DOJ were made in the process is an open question that needs to be examined fairly and objectively. And the constitutional conundrum has to be faced.
Two things really bother me that I haven’t seen addressed:
You lost me when you said Carter Page should be compensated by the government. Since you and I are the government I reject that I should have any part in his compensation. Yes I think he should absolutely compensated but by the crud that orchestrated this crime. They should be stripped of their earthly possessions and thrown in jail until they rot and then their carcasses hung at The Tidal Pool in DC. Carter Page should get everything they had or were going to have.
I don’t have a disagreement with you, but there are limited options: If Carter can get compensation only from the individuals acting under colour of law there is some chance that he will not be in fact compensated at all. There needs to be a more robust review of qualified immunity so that officials are afraid to abuse their positions. But we also don’t want officials to fail to do their duty for fear of financial liability. Glenn Reynolds at Instapundit has been talking about this for some time. In my prior life I did not have qualified immunity but my employer did agree to indemnify and defend me under most (but not all) circumstances. This may be a better approach.
Your thinking is flawed. By your criteria and example there are tens of thousands of employees that could have “dire” consequences if they are a bad actor and thus a full counter-intelligence investigation is justified. Note, this includes all the leadership of FBI, CIA, NSA, DIA, DOJ.
Instead, look at the obvious. We know Comey lied to Trump and intentionally skipped the process of informing Congress of his investigations in Trump. That shows criminal intent, which is sufficient to call it corruption. Q.E.D.
Great question. After 2.5 years we should assume the FISA court is corrupt and does not care about the truth or defending the Constitution. Further, Congress does not seem to care and entire Judiciary does not seem to care (hello John Roberts). All three branches of government and 4th estate have failed on this.
At least one FISA judge was social (buddies) with the corrupt FBI agents getting the warrant. He later recused himself.
Funny, I thought you were heading toward using this as a reason to investigate the FBI. And frankly, there is more reason to suspect it of doing something very wrong than for thinking Trump might be.
Well, yeah, that’s always possible.
I think this conflates my discussion between whether someone was acting in bad faith by taking some (as opposed to no) investigative steps, with issues about how and to what extent you conduct an investigation, and/or broadcast investigative matters rather than maintaining confidentiality.
I don’t think I argued that there were no corrupt persons involved. I am arguing that we need to understand what each of the actors did and examine whether any particular participant’s actions were in good faith or corrupt. I think it is a real world phenomena that people charged with law enforcement can be tempted to bend/break a law to get someone they have become convinced is a criminal involved in really really bad stuff. I am against that, but when it happens I do not automatically attribute it to basic criminal thinking.
I think I am asking that the FBI be investigated — just not that everyone involved be pre-judged. That is the mistake that some, many, most? of which the actors involved in the Trump investigation were guilty.
And Carter Page was never charged with anything, because he did nothing wrong and was smart enough to avoid getting rattled in FBI interviews. He has previous experience in dealing with FBI and more experience as an intelligence officer than any of the corrupt FBI paper pushers that were making a run at him.
I agree he did nothing wrong. The point of the post was that even if he had, the government knew it was foregoing a prosecution because at some point there was a high risk that their perfidy would be discovered and whatever evidence was developed was excluded as “fruit of the poisonous tree”.
I, too, am troubled by the apparent lack of outrage by the Judiciary. But we don’t know everything and so we will have to wait and see how (or if) these things will be sorted. Because I do think we are witnessing a constitutional crisis it is frustrating for the courts to remain silent. On the other hand we may prefer their silence over taking a position that subordinate executive officials can sabotage a duly elected President.
Given the apparent willingness of the Clintons to sell anything to anyone (China and Russia, especially), the fear of Trump-as-a-foreign-agent would seem to be more about preserving the existing power-clique than about real concern.
I don’t disagree with your premise, just that it actually applies here.
Yes, one of the most troubling aspects of this entire matter is (a) the differential approach in investigating the Clintons vs Trump, and (b) the overlap of personnel in the two matters. This is one of the key factors on examining whether a particular individual was corrupt, not simply mistaken and acting on confirmation bias.
I don’t know the answer but I do know what is shouldn’t be. Private enterprise isn’t protected from errors let alone malicious intent to do harm.
Yes, Ohr looks less corrupt since his testimony was reported.
You’re defining “ideological benefit” to be “personal benefit”, correct? That’s fine, but I want to be clear on it because it’s outside conventional usage. If a man falls on a grenade to save his comrades in a struggle for freedom, it’s not usually called an action for “personal” gain.
Yes, I am. But to be clear it is ideology that the individual wishes to promote “knowingly and intentionally in conflict with the public trust.” I did not believe I was using an unconventional usage. See Motives for Spying. I am making a connection between why a public official might abuse their public trust with why an individual would betray their country.
Thanks for clarifying.
Sooo…. we should be investigating pizzagate then?
Nah, just send in Jack Bauer.
Chief Justice John Roberts has an obligation to protect the federal courts and he is failing. Justice delayed is justice denied.
The problem was not the investigation. The government open and closes investigations on people and things all the time. It was the leaking, the politicalizing of the investigations and all data collected that is the issue.
@fakejohnjanegalt, outstanding summary! And it underlines the problem with using special counsels: When you use rank and file, investigations can be started and ended discreetly; but special counsels are like an immature and horny teenager with a hot date — something’s got to happen and you have to be able to brag about it.
In most all legal proceeding, you have two adversarial parties presenting their case to a judge or jury. Each party has an incentive to identify and expose any flaws in the other party’s arguments.
However, as I understand it, the FISA court deals with only one party, a government agency. There’s no adversarial process in place.
For this structure to work, it requires absolutely honest and scrupulous government employees as well as objective and skeptical FISA court judges. As we can see here, that doesn’t always happen.
If a FISA court is always hearing the case from one side only, I’d expect the FISA court to become overly familiar and friendly with that side and rule overwhelmingly in its favor.
In its history dating back to 1979, the FISA court has outright denied only 0.2% of all requests and required modification to another 3.0% of requests. This seems to be changing in the last two years, however, with 2.5% of requests denied in 2017 and 2.3% denied in 2016.
https://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court
I’m not sure what agency or organization could represent the adversarial side to the FISA court, nor do I know who this adversary would report to. However, without a two-sided presentation to the FISA court, future FISA abuses will certainly happen
Not sure why they even have it. It is obviously just a pro forma thing for the purpose of paperwork and rubber stamping.
Another danger of the FISA court is that it is unlike any non-FISA court where the filings and documents leading to a warrant are eventually made public for review. For the FISA court, the documents and justification for warrants are never opened for review. For this reason it is crucial that the court insist on full and complete information. Team Obama did not provide full and complete information and thus lied to the court knowing that the lies were secret and there would be no accountability–knowing the FISA court would not care about justice either. The corruption runs d-e-e-p.
Here is a thought. If a government agency’s employees are willing to abuse their government authority for such this as tearing down a politician they do not like. How many other things they doing this for? Maybe some insider information on stocks? Tear down the owner of that new business enterprise going up in their neighborhood they don’t like? Government is just a criminal organization that has managed to go legit by being strong enough to make and enforce their will to the point that it is now the law.
Example. Some Catholic Church has a few priest molest young people and get the government investigation that will eventually destroy / reduce the Church. On the other hand many more teachers do the same and …. crickets, chirp chirp… total apathy. But hey being in government means never having to say you are sorry.
Avoiding widespread government corruption is the single strongest argument I have heard for legalizing drugs. Living under a corrupt government is the strongest challenge to living a moral life.